By Michael Harris
The Department of Homeland Security (DHS) and the United States Citizenship and Immigration Services (USCIS) have released a major proposed regulation to implement the EB-5 Reform and Integrity Act of 2022 (RIA). The proposed rule, scheduled for publication in the Federal Register on July 2, 2026, is one of the most significant EB-5 regulatory developments since the RIA became law on March 15, 2022.
The proposal is not yet final. It is now entering the Administrative Procedure Act notice-and-comment phase. Written comments will be due 60 days after publication in the Federal Register, which should place the deadline around August 31, 2026, assuming publication occurs on July 2, 2026. After that, DHS must review comments, consider revisions, and publish a final rule before any new regulatory requirements become binding.
Although much of the proposed rule codifies what EB-5 stakeholders have already been living with since the RIA, several provisions would meaningfully affect project structuring, investor filings, redeployment, source-of-funds documentation, regional center compliance, and I-829 planning.
The RIA finally gets a full regulatory framework
The proposed rule would reorganize the EB-5 regulations by removing and reserving legacy 8 CFR 204.6, and by creating a new 8 CFR Part 204, Subpart D, for post-RIA EB-5 cases. DHS states that the old regulation generally would continue to apply to petitions filed before March 15, 2022, while the new subpart would govern the post-RIA program.
This is more than a technical cleanup. Since 2022, the industry has operated under a combination of statutory text, USCIS forms, Policy Manual updates, FAQs, stakeholder guidance, and adjudicatory practice. The proposed regulation is DHS’s effort to bring those scattered authorities into a single regulatory structure.
DHS proposes to codify the two-year post-RIA rule
One of the biggest headlines is the sustainment period. DHS proposes to codify the position that post-RIA investors generally need not sustain their investment for the full period of conditional residence. Instead, the required capital must remain invested for not less than two years, measured from the date the required capital is placed at risk, including being made available to the job-creating entity, where applicable.
This is important because it largely tracks USCIS’s prior post-RIA sustainment guidance, which became the subject of industry controversy and litigation. The proposed regulation would move that policy from sub-regulatory guidance into notice-and-comment rulemaking.
However, there is an important nuance: the proposed rule would require the investment amount to remain invested on the date the EB-5 immigrant visa petition is filed. For projects with short loan terms or fast repayment structures, this filing-date requirement may become a major drafting and comment issue.
Partial investments and escrow remain possible, but the full investment still matters
The proposed rule recognizes that an investor may qualify by having invested or by being “actively in the process of investing.” DHS also acknowledges that investors may continue to use escrow arrangements to demonstrate they are actively investing.
But the proposal draws a practical distinction between committing funds and completing the investment. For purposes of the two-year investment period, if funds are held in escrow, the clock does not begin merely because the investor placed money in escrow. The investment period begins after approval and release from escrow into the commercial job-creating activity.
This could affect projects that use staged capital calls, delayed escrow release, or subscription structures where the investor has committed the full amount but not all funds have yet been deployed to the NCE or JCE.
Investment amounts are codified, with future increases coming
The proposed rule would codify the RIA investment amounts: the standard minimum investment amount is $1,050,000, and the reduced investment amount for TEA and infrastructure projects is $800,000.
DHS also proposes to codify automatic investment amount adjustments beginning January 1, 2027, and every five years thereafter, based on CPI-U, rounded down to the nearest $50,000.
The proposal also includes a notable $1,400,000 investment amount for “high employment area” investments filed after the future final rule’s effective date. This could matter for projects that do not qualify for TEA or infrastructure treatment and are located in high-employment areas.
TEA and infrastructure rules will be important comment targets
DHS specifically asks for comments on high-unemployment TEA designation, including appropriate data sources, weighted unemployment calculations, and renewal of prior designations.
The proposed rule also seeks comments on what types of projects should qualify as infrastructure projects. This is notable because the infrastructure set-aside has been one of the least-used RIA categories, in part due to uncertainty about how USCIS will interpret it.
For developers and regional centers, the TEA and infrastructure provisions may be among the most consequential portions of the rule.
Bridge financing faces a major proposed restriction
DHS proposes eliminating the use of repaid bridge financing as a basis for demonstrating job creation in the EB-5 program. This would be a major change from prior EB-5 practice, where bridge financing has often been used to allow projects to begin construction before EB-5 capital is fully raised.
DHS is not entirely closing the door. The agency asks for public comments on alternatives, including whether bridge financing should be allowed with limitations, such as maturity limits or caps based on a percentage of total project costs.
This issue is likely to generate significant comment from regional centers, developers, economists, and industry groups.
Troubled business eligibility would be removed
Another major proposal is the removal of troubled businesses as a means of establishing EB-5 eligibility. Historically, troubled business cases allowed investors to qualify through job preservation rather than job creation. In practice, troubled business cases were relatively uncommon, but removing the category would still eliminate a longstanding EB-5 option.
Project applications become even more central
The proposed rule reinforces the centrality of the regional center project application. Regional center investors may file only after the regional center has filed the associated project application, and their eligibility remains tied to the ongoing approval of that application.
This means that Form I-956F strategy becomes even more critical. A project application is not merely a procedural prerequisite; under the proposed rule, it becomes a continuing basis for investor eligibility in petitions.
DHS also proposes procedures for amendments, including investor amendments where a regional center, NCE, or JCE is terminated or debarred. In some circumstances, no amendment would be required if the investor’s capital remained invested for at least two years and the required jobs were created.
Redeployment remains, but with more guardrails
DHS specifically requests comments on redeployment of investor capital, including the process regional centers should use to document compliance.
The proposed rule appears to reflect a post-RIA world in which redeployment should not be necessary solely due to long visa backlogs, if the investor has already met the two-year investment requirement and job creation has occurred. DHS expressly notes that its interpretation would limit the need for NCEs to redeploy capital solely to keep investor funds at risk over potentially lengthy visa delays.
That said, redeployment will be subject to more formal compliance rules, documentation, and enforcement risk.
Fund administration, separate accounts, and compliance systems get more serious
The proposed rule would implement RIA provisions governing separate accounts and fund administration. Regional centers, NCEs, and JCEs should expect greater scrutiny over the flow of investor capital, recordkeeping, oversight, and compliance certifications.
This is part of a broader theme: DHS is not merely regulating investor eligibility. It is regulating the EB-5 ecosystem, including regional centers, NCEs, JCEs, promoters, fund administrators, and persons involved with EB-5 entities.
DHS proposes to implement registration rules for direct and third-party promoters. The agency specifically asks for comments on the promoter registration process.
Promoters and migration agents face formal registration rules
This is another major compliance development. Regional centers and NCEs will need to ensure that promoters, migration agents, and other intermediaries are properly registered, compensated through written agreements, and disclosed as required.
Audits, site visits, sanctions, and debarment become central enforcement tools
The proposed rule would implement audits, site visits, monetary penalties, suspensions, debarments, and terminations.
This confirms that the post-RIA program is moving from a primarily petition-driven model to an oversight-heavy compliance regime. Regional centers and project sponsors should expect USCIS to focus on documentation, capital flow, securities compliance, promoter activity, job creation, and ongoing eligibility.
National security and fraud provisions are broad
The proposed rule would implement RIA provisions designed to protect the EB-5 program from fraud and national security threats.
These authorities could affect investors, regional centers, NCEs, JCEs, and persons involved with EB-5 entities. They also may allow USCIS to take action beyond the traditional RFE, NOID, and denial framework, including sanctions and debarment.
Withdrawal and automatic revocation rules are clarified
DHS also proposes to clarify the processing of withdrawal requests and the automatic revocation of petitions for immigrant classification.
This could matter for investors who withdraw from projects, seek to preserve priority dates, or become involved in amended or replacement investment structures.
When could the final rule be published?
Because this is a proposed rule, nothing becomes final until DHS completes the APA process. Comments should be due approximately August 31, 2026, assuming Federal Register publication on July 2, 2026. After that, DHS must review and respond to significant comments before publishing a final rule.
There is no mandatory deadline for DHS to issue the final regulation. A very aggressive timeline could result in a final rule in late 2026, particularly if DHS wants final rules in place before the first automatic investment amount adjustment on January 1, 2027. A more realistic timeline may be early to mid-2027, especially given the rule’s size, the complexity of the EB-5 program, and the likelihood of extensive comments from industry stakeholders.
The final rule also may not become effective immediately upon publication. Parts of the proposal reference effective dates set for a period after publication of the final rule, including provisions that would take effect 60 days after final publication.
The key takeaway
This proposed rule is not just housekeeping. It is the first comprehensive attempt to regulate the post-RIA EB-5 program.
For investors, the most important issues include sustainment, redeployment, source-of-funds documentation, project approval risk, and protections if a regional center, NCE, or JCE is sanctioned.
For regional centers and developers, the most important issues include project applications, bridge financing, TEA methodology, infrastructure eligibility, fund administration, promoter registration, audits, amendments, and enforcement exposure.
The industry should treat this notice-and-comment period as a critical opportunity. Many of the proposed provisions are likely to shape EB-5 practice for years. The most important comments will not merely object to unfavorable rules; they should propose practical alternatives that protect program integrity while preserving EB-5 capital’s ability to finance real projects and create real jobs.
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